Federal prosecution of public corruption in the United States

Several statutes, mostly codified in Title 18 of the United States Code, provide for federal prosecution of public corruption in the United States. Federal prosecutions of public corruption under the Hobbs Act (enacted 1934), the mail and wire fraud statutes (enacted 1872), including the honest services fraud provision, the Travel Act (enacted 1961), and the Racketeer Influenced and Corrupt Organizations Act (RICO) (enacted 1970) began in the 1970s. "Although none of these statutes was enacted in order to prosecute official corruption, each has been interpreted to provide a means to do so."^[1] The federal official bribery and gratuity statute, 18 U.S.C. § 201 (enacted 1962), the Foreign Corrupt Practices Act (FCPA) 15 U.S.C. § 78dd (enacted 1977), and the federal program bribery statute, 18 U.S.C. § 666 (enacted 1984) directly address public corruption.

The statutes differ in their jurisdictional elements, the mens rea that they require (for example, a quid pro quo or a nexus), the species of official actions that are cognizable, whether or not non-public official defendants can be prosecuted, and in the authorized sentence. The statutes most often used to prosecute public corruption are the Hobbs Act, Travel Act, RICO, the program bribery statute, and mail and wire fraud statutes.^[2]

These statutes have been upheld as exercises of Congress's Commerce Clause power, or in the case of the mail fraud and program bribery statutes, the Postal Clause and the Spending Clause, respectively. In the special case where a member of Congress is the defendant, the Speech or Debate Clause places certain restrictions on the actions that can be prosecuted and proved up. Some commentators have argued that prosecutions of state and local officials under these statutes pose substantial federalism questions, while others argue that the Guarantee Clause provides additional authority for such prosecutions.